Sanders v. City of Troy

• Citation: 100 So. 483,211 Ala. 331
• Decision Date: 22 May 1924
• Docket Number: 4 Div. 133.
• Parties: SANDERS ET AL. v. CITY OF TROY.
• Court: Supreme Court of Alabama

100 So. 483

211 Ala. 331

SANDERS ET AL. v. CITY OF TROY.

4 Div. 133.

Supreme Court of Alabama

May 22, 1924

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Bill for injunction by W. B. Sanders, G. W. Hamil, and W. A Bradley against the City of Troy, to restrain the letting of improvement contracts and issuance of bonds therefor. Decree denying relief, and complainants appeal. Affirmed.

Ballard & Brassell, of Troy, for appellants.

T. L Borom and Wilkerson & Brannen, all of Troy, for appellee.

MILLER J.

This is a bill in equity filed by W. B. Sanders and others against the city of Troy, a municipal corporation. The complainants are each resident citizens and taxpayers of this municipality. They are each over the age of 21 years, and each owns land on streets and avenues in this city, which are proposed by the defendant to be paved.

The complainants by the bill seek temporary and permanent injunction to restrain and enjoin the city of Troy from letting any contract for the pavement and improvement of the streets and avenues and from executing and delivering bonds as proposed to secure the money to pay for these pavements and improvements.

The bill for temporary injunction was presented to Hon. W. L Parks, judge of the circuit court, in equity, of Pike county on February 28, 1924. He set it for hearing on March 15 1924, in the courtroom at Troy, Ala., and directed that defendant have six days' notice thereof, and ordered that defendant be temporarily restrained from making the contracts mentioned and from executing the bonds until this hearing of the application for temporary injunction, upon complainants giving bond in the sum of $1,000, conditioned, payable, and to be approved as the statute provides. The application for the temporary injunction at the hearing was submitted to him by complainants on their bill of complaint as amended, verified by affidavit, and by the defendant on full answer verified by affidavit and ex parte affidavits. The judge of the court refused the application for the temporary injunction, indorsed his refusal on the bill as amended, and signed his name as judge thereto. The complainants under the statute (section 4531, Code 1907) within ten days thereafter appealed from this order, and it is the error assigned.

It appears from the bill as amended and the answer that the council of the city of Troy determined to improve and pave certain streets and avenues in this city, the cost of which is proposed to be assessed against the property abutting on the improvement and pavement, as the statute (section 1359, Code 1907) permits; and the city council in furtherance of that purpose adopted three separate and distinct ordinances, each for paving different streets and avenues in the city, under section 1361, Code 1907.

The complainants insist this temporary and permanent injunction should issue because the city council by these separate ordinances did not comply with section 1361 of the Code, in that each ordinance failed to state "the general character of the material to be used" in paving the different streets and avenues, mentioned therein. Each of these ordinances describes the general character of the materials to be used in paving the proposed streets and avenues in the same words as follows:

"Shall be paved with vitrified paving brick on a concrete foundation, concrete, asphaltum, asphaltum mixture or woodblock pavement."

The statute requires the general character of the materials to be used in paving the streets to be stated in the ordinance or resolution. This ordinance gives in the alternative five descriptions of the general character of the materials proposed for paving the streets. Are they each and all separately and severally, sufficient in the description of the general character of the material to be used in paving the streets to meet the requirements of the statute? This is necessary. Garner v. City of Anniston, 178 Ala. 430, headnote 5, 59 So. 654. The first one is vitrified paving brick on a concrete foundation. This means a pavement made of paving brick, glazed like glass by heat and fusion placed on a foundation of concrete which is a mixture of sand, gravel, pebbles, or stone clippings with cement. A similar description in an ordinance of the general character of the materials to be used in paving the streets was held by this court to comply with the statute in Henderson v. City of Enterprise, 202 Ala. 277, headnote 3, 80 So. 115. The second alternative is a "concrete pavement." "Concrete" is defined by Webster as a mixture of sand, gravel, pebbles, or stone clippings with cement or with tar used for sidewalks or roadways, etc. This description, "concrete pavement," carries with it the general character of the materials composing it as the statute contemplates. The third alternative is "asphaltum pavement"; and the fourth is "asphaltum mixture pavement"; and the fifth is woodblock pavement. These three descriptions in the ordinance of the general character of the material to be used in paving the streets are practically approved as sufficient by this court in Garner v. City of Anniston, 178 Ala. 430, 441, 59 So. 654. "Asphaltum" is defined by Webster as a composition of ground asphalt rock and bitumen, of bitumen lime and gravel, or even of coal tar, lime, sand, etc., used for forming pavement. The statute does not purpose that every ingredient and the quantity thereof, composing the pavement when completed, shall be stated in the ordinance, but the general character of the material to be used shall be stated therein. This court in Garner v. City of Anniston, supra, illustrated what would be an apt and adequate statement of the general character of the materials to be used in the pavement to appear in the ordinance so as to meet the design of the statute. It stated the requirements of the statute would be complied with if the ordinance stated "that the proposed improvement is to be constructed of stone or brick or asphalt or wood or combination of bituminous products and crushed stone, which makes what is commonly known as bitulithic pavement." Under this authority we must hold that each of the five alternative descriptions of the...